By David G. Savage
TIMES STAFF WRITER

WASHINGTON, DC-The Supreme Court conservative majority on Wednesday (23 June, 1999) dramatically curbed the power of Congress, shielding the states from federal laws that regulate the workplace and protect patents and trademarks. Invoking the doctrine of "state sovereign immunity," the justices said that these laws cannot be enforced in private lawsuits brought against states. The four dissenters accused their colleagues of adopting a radical states' rights philosophy that had died with the Union's victory in the Civil War.

The high court handed down three decisions that also cast doubt on federal environmental laws and civil rights measures in cases in which state agencies are the violators. One of the rulings appears to leave 4.7 million of the nation's state employees with no way to enforce their rights to minimum wages and overtime pay. The state of Maine had refused to pay overtime wages to a group of parole officers, as required by federal law, and the court ruled that these workers cannot sue the state over the issue.

Another pair of rulings effectively strips inventors, publishers and software makers, among others, of the right to sue state universities and other state agencies over stolen patents or, probably, copyrights. The sweeping decisions likely will have an immediate effect on a number of patent and copyright disputes involving state universities, including a long-running patent lawsuit between Genentech Inc., the biotechnology firm based in San Francisco, and the University of California.

"Right now, there is no remedy" for someone who sues the University of California for stealing a patent, said P. Martin Simpson, Jr., a lawyer for the UC system in Oakland, California. In 1992, Congress passed laws to make clear that states could be sued for such violations, but the court struck down those laws Wednesday. Some legal experts said they were stunned by the court's action. "This is a radical change in American government," USC law professor Erwin Chemerinsky said. "It says the states can violate federal law with impunity and nowhere can they be sued for damages in a federal or state court. Imagine if a state lab dumps toxic waste into someone's backyard in violation of federal environmental laws. This says the homeowners cannot sue the states for their damages." (This illustrates how the police-state republic is above the law, which was clearly the intent of the founding fathers when they wrote the Constitution of 1787. WFI Editor) Clearly, the justices saw the cases decided Wednesday as raising a profound question.

DO THE STATES STILL POSSESS "SOVEREIGNTY"?

Are the laws of the United States the "supreme law of the land," binding in all 50 states, as the Constitution (of 1787) says? Or do the states retain a "sovereignty" that predates the Constitution (of 1787) and lives on today? The court's five conservatives adopted the latter approach. The states have a "sovereign status" that makes them separate and independent from the national government, Justice Anthony M. Kennedy said. "The states' immunity from suit is a fundamental aspect of the sovereignty that the states enjoyed before the ratification of the Constitution (of the republic), and which they retain today." Kennedy did not point to any passage in the Constitution (of 1787) that says the states are sovereign. Instead, he said, this belief was understood and accepted in 1787, when the original charter was written and ratified. The "founders' silence is most instructive," he said, because it shows that the sovereign status of the states was assumed. (Constitutional law under the republic is totally specious. The states have no objective reality any more than IBM or General Motors. The so-called doctrine of "states' rights" has caused more social upheaval in the United States, than any other revolutionary doctrine that has been introduced into the American society. When corporations have "rights," real flesh and blood people, lose their rights. WFI Editor)

For most of this century, Congress has not assumed that the states have such an independent status. National lawmakers have passed broad measures regulating many aspects of American life, including the workplace, the economy and the environment, and states are covered as well. For example, state employees are entitled to minimum wages and extra pay for overtime, just are those in the private sector. Until recently, these laws have gone mostly unchallenged. "Congress has vast power but not all power," Kennedy said, his voice rising a note. "We reject any contention that substantive federal law by its own force necessarily overrides the sovereign immunity of the states." His opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. (In the U.S., common law only prevails in the absence of legislation, either by Congress or a state. Once an area has been legislated, then the legislation of the politicians takes precedence over the common law. Also, the common law must be expressly adopted by a state, or it is not recognized by the courts there; for example, Louisiana is governed by the Code Napoleon, based on Roman law. This gets at the core definition of positivist law: law is no more nor less than that which is expressly declared to be the law by the lawmaking authority of the government. Sovereign Immunity is an ancient common law legal doctrine that states that the government cannot be sued, that was in the process of being superseded by legislation when this series of decisions by the Supreme Court radically changed the American legal landscape. WFI Editor)

The four liberal justices dissented. "The doctrine of sovereign immunity is more in the mind of King James I than of James Madison," said Justice Stephen G. Breyer. "When a state acts like a private business, it should be held accountable" under the same laws. Justice John Paul Stevens accused the conservatives of "setting loose a mindless dragon that chews gaping holes in the law." Citing an example from Los Angeles, Stevens noted that the decisions create an oddity in the law. "A public school such as UCLA can sue a private school such as USC for patent infringement, yet USC cannot sue UCLA for the same act," he wrote. (Suing schools is probably way in the back of these justices' minds; what is probably forefront is the future of lawsuits by the victims of police abuse, who under this new version of states' rights, will have no rights to seek legal redress. WFI Editor)

The most powerful dissent came from Justice David H. Souter, the normally reserved and soft-spoken New Englander. His voice dripping with sarcasm, Souter said that the conservative justices had invented a notion that was not adopted in the Constitution (of 1787) and had expired when the Civil War ended. "The state is not the ultimate sovereign. The national government is," he said, looking across at Kennedy. (Apparently, not anymore! WFI Editor) "The majority could not be more fundamentally mistaken." He added that the court has created "a very peculiar state of affairs" for many workers and private businesses. In the Genentech case, the biotech firm sued the University of California over products that grew out of research involving human growth hormones. UC lawyers had appealed the case to the Supreme Court, arguing that the state university should be immune from such suits. The case was put on hold until the outcome of the cases decided Wednesday, and UC lawyers now are expecting a one-line order dismissing Genentech's claim (Regent's of the University of California vs. Genentech, 98-731).

While the court ruled directly concerning federal patents and trademarks, lawyers in the publishing field expect and fear that the same principle will apply in the copyright area. If so, state universities could freely copy books, music, software and other protected works. "This is unbelievable. Under this decision, a state can infringe a patent or copyright and no court in the country can do anything about it," said Charles S. Sims, a New York lawyer for the Assn. of American Publishers and the Software and Information Industry Assn. "As a practical matter, I don't see a remedy," added David C. Todd, a Washington lawyer who represented a bank that was on the losing end of one of the rulings. "This means the states are beyond the reach of Congress. This is a very extreme approach."

In the fall, the justices will consider whether to exempt the states from some federal civil rights laws. When several state university professors and librarians sued Florida State University for age discrimination, a federal appeals court said that the university could not be sued under the Age Discrimination Act. The first case decided Wednesday, blocked parole officers from obtaining the overtime wages they believed they were owed. In another case, a private bank developed a popular tuition prepayment plan, that several states adopted. The bank sued for patent infringement and false advertising in violation of the trademark laws. In that case the Supreme Court decided that the bank cannot sue the state agency.

SOURCE: Excerpted from the 24 June, 1999, issue of the Los Angeles Times, Orange County Edition, from an article entitled, "Rulings Give States Broad Immunity Against Lawsuits." Reprinted in the public service of the national interest of the American people.

(WFI EDITOR: Is this the swan song for the republic? First, the legislature dukes it out with the executive, spurred on by an Independent Counsel impaneled by the judiciary. Now the Supreme Court is giving the state bureaucracies a green light to go off in their own directions. This series of decisions will cause chaos in the United States, despite the popular fiction that "returning power to the states" is the equivalent to returning power to the American people. The bureaucracies of this republic are already so mindless and out-of-control, and self-perpetuating [the best example of which is the so-called presidential campaign for November, 2000], these decisions will only increase the probability that the United States Government may follow the example of its Soviet rival, and implode. Every day, the politics of the republic become more distant from the every day concerns of average Americans. This disconnect can only go on for so long, before a real explosion takes place that no one wants, but which all the powerful pundits, politicians and bureaucrats will be helpless to avoid.)